Wednesday, September 16, 2009

Stroker Serpentine, best known for creating the SexGen line of erotic furniture in Second Life, is suingLindenLab. I'm concerned.

Perspective

Certainly, I have a lot of sympathy for Mr. Serpentine. He has to deal with rampant piracy. People across the Grid make illicit copies of his products, and sell them, even under the same trademarked name. That's wrong. Linden Lab, demonstrating its usual level of customer service, really doesn't do anything about it. Complaining to them is a waste of time. The one time they did try to remove an infringing item, they accidentally destroyed every working copy of his bed in existence. If that happened to me, I'd explode.

Except—it did happen to me. Literally the day after I released En Garde, Linden Lab made a change in the LSL scripting language that broke the game.

I accepted it as part of doing business in Second Life. Second Life is a horrible, buggy, unstable platform, and it's been that way for years. It will never get better. The best you can hope for is to find some way around all the ugliness. So when Linden Lab broke my game, I started coding a way to fix it.

Fortunately, Linden Lab fixed it before it could release my patch. And En Garde has gone on to become very successful. I didn't stress out about it too much, and my blood pressure didn't go up.

If I were really the creator of SexGen, I don't think I would get too upset over copyright violations. By most accounts, Mr Serpentine has made over a million dollars selling beds in Second Life. A million dollars. If I felt I was getting irked over people copying my stuff, and I had a million dollars, I'd just book a week's vacation in the Caribbean.

The Class

One thing puzzles me, and I haven't seen anyone talk about it. This lawsuit is being filed as a class action. Class action lawsuits are meant to consolidate plaintiffs when you have thousands of people who have been wronged. It streamlines the legal process and makes it possible for people who wouldn't otherwise be able to sue to gain redress.

But if you read the complaint, the class of people who are allowed to participate are creators who have registered Trademarks and Copyrights.

How many people in Second Life are selling goods with registered trademarks and copyrights? Registering a trademark costs a good bit of money. Copyrights are cheaper, but you still have to file the paperwork. I'd bet there's less than a dozen people, not counting corporations like Coke and Adidas, who actually own registered trademarks on items they sell in Second Life. So who's going to join this lawsuit?

I see a lot of people cheering for Mr. Serpentine. But I think a lot of that enthusiasm is borne of the frustration people have felt when dealing with the brick wall that is Linden Customer Support. Would people be so encouraging if this becomes a battle of Linden Lab versus the Fortune 500?

The Remedy

Policing IP infringement is hard. It's hard even when you have a simple website. That's why almost any website, when given notice of a DMCA violation, will immediately take down the indicated content. It's easiest to punish first and ask questions later. Determining if something really is infringing takes work. A human has to investigate the claim, see if the person filing the complaint truly has the rights to the IP, determine if the claimed work infringes (maybe it's Fair Use?)... nobody wants to do all that. So they just take it down, hopefully inform the other party, and let them sort it out in court.

The situation is even worse for Linden Lab. To investigate a claim they'd have to walk around in a virtual mall. Maybe the infringing item is one vendor among one hundred on a wall of vendors. When I'm shopping and I know the item I'm looking for, it can take me ten minutes browsing through the store to find it. I don't think they can simply ban the account either. If someone is selling one infringing item in an otherwise legal store, does that justify banning them? I don't think so. There's too many people complaining about Linden Lab banning them, and being unable to reinstate their account, already. It would be too easy to frame someone for infringement.

There is one solution that Linden Lab could take to resolve this situation. It would actually reduce their enforcement costs. But it's a solution I fear, because it is so simple and obvious -- and wrong. Linden Lab could remove all ability for people to sell items in-world. All purchases would have to be done through XStreet.

If everything was sold through XStreet, then Linden Lab could enforce DMCA takedown requests exactly like everyone else. If someone is selling an infringing item and they get a complaint, then they take down the page. Simple and easy, and nobody could fault them for negligence, because it's exactly what every other website is doing.

Linden Lab takes 5% of every sale on XStreet. So if that became the sole place to purchase items, then every content creator takes a 5% hit. Or they pass that on to buyers.

I sell items both in-world and on XStreet. When XStreet was independent, I accepted the 5% fee as a part of doing business, and a reasonable surcharge for the additional exposure they gave me. When Linden Lab took over XStreet, I grumbled a bit but didn't do anything. If XStreet becomes the exclusive marketplace, though, I will have to raise my prices to compensate.

6
comments:

I'm glad Stroker and Munchflower are doing it over anyone else.

You could visit xstreet today and type in Nike, see so many people ripping off that trademark, similarly type it into the in-game search or better still the CLASSIFIEDS. Yes people pay the lab directly to violate trademarks.

What does LL do? Not much so far, they say they'll act but we're all still waiting.

One day big corps like Nike will come along and join the lawsuits too, that's when you worry.

Heh..Though I must say I don't see any mentions of the Taser brand in Secondlife since their 'dealings'.

Well, in my opinion Linden Labs under the RL law it is not the problem between the thief and the trademark(Nike). Most of the time that I remember I must be Nike to claim their trademark. I guess with digital creation copies and imitated between residents must be forward and reported 100.000 times if needed, to LL. If they don't do nothing ( as we know they don't do ) then I agree totally in this action, moving the problem to the RL court and let the law decide what is wrong or what it is right.

My biggest question, will DMCA take more action than making too much "bla bla bla talking"?

Very good points, Rifkin. It's quite true that few people register their trademarks and copyrights for items sold in SL; and if Nike hasn't been able to get the trademarked pirated content removed, why should a humble resident have more success?

As you said, there is no easy and simple solution, but, as we all know, Second Life is the only 3D platform that has uncontrolled user-created content out there. All others either use Web-based shops or, well, a manual content approval method. If that gets implemented in SL, the content creation economy will die.

This has been one of the most level-headed and thoughtful treatments of this story I have seen to date. I agree with each and every one of your points, as well as having a few more of my own.

I was an outspoken opponent of Stroker's very first lawsuit, and remain to be adamant in my opposition to dragging real world law into the settlement of issues in Second Life. I remain fairly confident that I'll be able to sit back one day and say "I told you so".

Think beyond the matter of copyright infringement in relation to the "content creators" of Second Life. The next time you visit, turn up your speakers and listen. Hear all that wonderful streamed music? Do you think all of the self-styled disc-jockeys in SL streaming their iTunes catalog through Shoutcast have actually paid the licensing fees required for running an internet radio station?

Move on to all of the televisions and video players and video stores in-world and ask the same question.

But, aside from my inherent distrust of what using the sledgehammer of current IP law will do to Second Life, I'm also very concerned over what the wider implications for the rest of the internet will be. This is not simply a challenge to Linden Lab, it's a test of the DMCA, as well. If *that* particular legal protection to service providers and hosts suffers damage, the entire content-rich internet as we know it will resonate.